Delhi Development Authority ... vs Delhi Development Authority
1987 Latest Caselaw 317 Del

JUDGMENT

Goswami, J.

(1) This judgment will dispose of batch of writ petitions which have been listed before us and involve a common question for decision by this Court. Though the petitioners allottees are registered under two different schemes-one of 1979 and the other of 1982 but the challenge is only to the abandoning of the scheme of allotting flats to citizens on hire purchase basis and insisting on cash down payments from the allottees.

(2) The respondent-Delhi Development Authority, under the regulations framed two schemes. The first scheme is known as Registration scheme on new pattern 1979 of intending purchasers of flats to be constructed by the D.D.A. and the second scheme is for allotment of D.D.A. flats to retired/retiring Govt. servants of i982. The object of the first scheme as stated in the very first clause is that the Scheme has been formulated to reduce the sale price of M1G/LIG and Janata flats so as to be within the reach of common man and to facilitate payments the mode has also been made easier. Clauses 10 and 11 of the said .scheme are :- "Clause JO.- While making allotment under the registeration scheme, 40% of the Mig flats will be allotted on cash down basis & 60% of the flats on hire purchase basis. LIG/Janata flats will be disposed of on the basis of 25% on cash down basis and 75% on hire purchase basis. Clause 11.-In case of flats allotted under hire purchase basis the cost of land plus 20% of the balance cost of the flat will be recovered as initial deposit at the time of allotment and the balance amount will be recovered in monthly Installments spread over a period of 7 years; in case of Mig flats 10 years and 15 years in case of Janata flats." Similarly the terms of allotment of the second scheme are that 50% of the houses constructed shall be allotted on cash down basis and 50% on Installment basis. In the second scheme, in the case of house allotted to the Lig and Mig, 50% of the cost was payable within one month of the demand, and the balance 50% in regular Installments of 10 years; in the case of janata flats 30% of the cost was payable within one month of the demand and balance in Installments of 15 years.

(3) The petitioners in all these petitions are the allottees who had opted for the purchase on H.P. basis and had made the initial deposit at the time of registration. It is alleged in the petitions that most of the applicants fall in the category of having an income between Rs. 600.00 p.m. & 1500.00 p.m. and have large families to support. From 1984 onwards till 1986 the D.D.A. informed most of the applicants that they had been successful in the draw of lots and it had been decided by the D.D.A. to allot the flats to them. However, in August, 1986, the successful applicants received letter from the D.D.A. informing them of their allotment Nos. of flats and calling upon them to deposit the entire cost of the flats within 2 months. The petitioners, who are unable to deposit the entire cost in lumpsum were aggrieved and have thus filed these petitions. Some of the the petitioners have also challenged the enhanced demand made against them as compared to the amount mentioned in the original brochures issued by the D.D.A. but this plea was given up during the course of arguments and as such we are only concerned with the question of abandoning the system of hire purchase and insisting on cash down basis from the applicants.

(4) The main contention of the learned counsel for the petitioners before us was that the D.D.A. was estopped from demanding the payment in lumpsum which is contradictory to the very object of the scheme on the basis of which the petitioner had registered themselves and had made the initial deposit at the time of registration.

(5) In the counter affidavit filed on behalf of D.D.A. it has been pleaded that due to the escalation in the cost of labour and material it became difficult to have loan facility from Hudco due to their stringent conditions and as such the D.D.A. was compelled to change the scheme. It is further pleaded that the scheme had to be altered for executive necessity as the D.D.A. was to get funds from Hudco and on refusal of Hudco to provide the necessary funds, the D.D.A. had no option but to alter the scheme as-it was already in deficit to the extent of Rs. 150.14 crores on housing project for the year 1986-87. It is further pleaded that a sub-committee was constituted to conduct an indepth study of the budgetory proposals and make its recommendations. The action of the D.D.A. in demanding the entire amount in lumpsum is in accordance with the said proposals of the sub-committee. During the course; of arguments, the reliance was placed by the D.D.A. on clause 26 of policy of 1979. Said clause reads: "The above terms and conditions will be valid generally but the D.D.A. reserves its right to alter any of them in its discretion as and when considered necessary."

(6) The question for consideration is whether u/clause 26, the D.D.A. was authorised to abandon the scheme of hire purchase and insist on lumpsum payment. The word 'alter' has been considered in various authorities and it would be sufficient to refer to District Local Board v. Krishna , wherein the D.B. of the Bombay High Court held that word 'alter' means only change, modify or revise but not abolish. It is true that clause 26 does permit alteration but it certainly does not authorise the D.D.A. from completely destroying the scheme. We are of the opinion that under this clause only such alterations can be made by which the essential feature of the scheme is retained and the purpose for which it was formulated is not defeated. As we have already said above, the very purpose of the scheme is contained in clause 1 of the scheme which is to the effect that the scheme has been formulated to reduce the sale price of the MIG/ Lig and Janata flats so as to be within the reach of the common man and to payments the mode has also been made easier. By this alteration the very mode of payments is being altered which means the object of the scheme is being defeated. The applicants are in the Lig and in the Mig and also belonging to the Janata class having a maximum income of Rs. 4200.00 per year and in these circumstances, it is impossible for this class to pay the amounts in one lumpsum, particularly, when the demand made by the D.D.A. has been substantially raised as compared to the one mentioned in the brochure. The estimated cost of Janata flat as mentioned in the brochure is Rs. 8000.00, the Lig flat is as Rs. 18,000.00 and the Mig flat as Rs. 42.000.00. The present demands are Rs. 29,760.00, 63050.00 and Rs. 1,38,080.00 respectively. To respect the persons earning below Rs. 1500.00 p.m. to pay such heavy amounts in lumpsum is not possible and the action of the DD.A. would only amount to depriving the petitioner from acquiring their flats.

(7) As we have already said the only plea raised in the original affidavit and in the additional affidavit by the respondent is to the effect that the system has been revised due to executive necessity for lack of adequate finance being available with the D.D.A. Such a contention has repeatedly been negatived by their lordships of the Supreme Court. In Union of India v. Indo Afghan Agencies, Air 1968 Sc 718, the defense of executive necessity was negatived and it was observed :-- "Under our jurisprudence the government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed grounds of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the Judge of its own obligation to the citizen on an exparte appraisement of the circumstances in which the obligation has arisen." The aforesaid paragraph was cited with approval in the case of Uoi v. Godfery Philips .

(8) In any case the doctrine of executive necessity, if, at all, is available to a sovereign state and not to a statutory body like the D.D.A. which has been constituted under an Act. This doctrine came up for consideration in Rederiiaktie-bolaget Amphitrite v. The King, 1921-3 Kb 500. In that case during the 1st World War certain neutral ship owners obtained a undertaking from the British Govt. if the ship owners sent a particular ship to the U.K. with a specified cargo she shall not be detained. On the faith of that undertaking the owners sent the ship to a British port with that specified cargo. British Govt. withdrew their undertaking and refused her clearance. On a petition of right for damages for breach of contract, it was held that the Govt. undertaking was not enforceable in a court of law, it not being within the competence of the Crown to make a contract which would have the effect of limiting its powers of executive action in future. The Supreme Court had the occassion to consider this case in Anglo-Afghan Agencies (supra) and it was observed that the contention of executive necessity does not relieve the Govt. from honouring its solemn promises when those promises were meant to be acted upon and were in fact acted upon. Such promises were binding on the Crown and the Crown had no authority to revoke the same.

(9) In the present case, after the aforesaid two schemes were introduced by the respondents, the petitioners-applicants had registered themselves and had deposited huge amounts as registration charges. Therefore, the petitioners had acted to their determient on the basis of the solemn promise given to them in the brouchers issued by the respondents. They have been waiting for their flats for several years and after about 7 years when their turns came to own the flats, they are faced with the letters issued by the D.D.A. which are impossible for them to comply with. Thus the result is that the petitioners are being denied the right to own their flat and suffer consequences. In the circumstances, the respondent is clearly estopped from acting contrary to the promise made to the citizens who have acted on the said promise and the doctrine of promissory estoppel is clearly applicable to the facts of the present case.

(10) We may also mention that some of the petitioners have already deposited a part of the demand as a consequence of interim orders by this Court, those payments would be adjusted towards future Installments.

(11) For the reasons recorded above, we make the rule absolute and issue a writ in the nature of mandamus directing the respondent, D.D.A. to adhere to its original scheme of alloting flats on hire purchase basis in accordance with brochures issued and withdraw the letter asking for payment in lumpsum. Parties to bear their own costs.